High Court · 2023

Mr. B. Debnath, Advocate. Mr. B. Majumder, Advocate. Mr. D. Debnath, Advocate. Date of hearing and delivery : Of judgment and order : Whether fit for reporting

20.07.2023 YES/NO HON’BLE MR. JUSTICE T. AMARNATH GOUD _F_I_N_A_L O_ R_ D_ E_ R_ Heard B. Debnath, learned counsel appearing for the appellants also heard Mr. B. Majumder, learned counsel and Mr. D. Debnath, learned counsel appearing for the respondents. [2] The present appeal has been filed under Section-173 of the Motor Vehicles Act, 1988 against the judgment and order dated 21.07.2022 passed by the learned Member, Motor Accident Claims Tribunal, Tribunal No.2, West Tripura Agartala in connection with case No. TS (MAC) 09 of 2021 for enhancement of the meager awarded amount to the claimant-petitioners due to death of their mother, in a vehicular accident. The cross-objection [CO (FA) 16 of 2022] has been filed under Order-41 Rule-22 of the Code of Civil Procedure read with Section-173 of the M.V. Act, along with its up to date amendments by the Oriental Insurance Co. Ltd. against the impugned award dated 21.07.2022 passed by the learned Member, Motor Accident Claims Tribunal, Court No.2, West Tripura Agartala in connection with case No. TS (MAC) 09 of 2021. Further, another cross-objection [CO (FA) 01 of 2023] has been filed by the respondent- O.P. No.1 against the MAC. App. No.86 of 2022 filed by the claimant-petitioner- appellants under Order-XLI, Rule-22 of the Civil Procedure Code for absolving the respondent O.P. No.1 from the liability of payment of the award of compensation to the O.P. insurance company as would be paid by the O.P. insurance company to the claimant-appellants as per judgment and order dated

21.07.2022 passed by the learned Member, Motor Accident Claims West Tripura Agartala in connection with case No. TS (MAC) 09 of 2021. [3] Brief facts, leading to this case is that on 16.11.2020 at about 3-30 p.m. Jyotsna Rani Nath along with two other ladies was waiting at water supply point for taking water at Khasiabari area on Khasiabari-Tilthai Road at that time one SML Canter Truck bearing registration No.TR-01-AA-1761(herein-after called the offending vehicle) which was coming from the Chamtilla direction towards Tilthai Hospital hit the deceased and two other ladies going on the wrong side of the road as a result of which Jyotsna Rani Nath sustained severe injuries on her persons and died on the spot. Local people brought her in the Dharmanagar District Hospital where doctor declared her as dead. Post Mortem examination was also done over the body of deceased. In this connection Panisagar PS Case No. 2020 PNS 048 dated 16.11.2020 u/s 279/338/304(A) of IPC was also registered. Claimant petitioners further stated in their claim petition that the accident occurred due to rash and negligent driving on the part of the driver of the offending vehicle. [4] Claimant petitioners also stated that at the time of death deceased was aged about 44 years and she was a Anganwari Worker under Panisagar ICDS Project, North Tripura and used to earn Rs. 4,202/- per month. The OP No.1, owner of the offending vehicle despite of receiving notice did not turn up. Hence , the case proceeds ex parte against the OP No.1. [5] After hearing the learned counsel appearing for the parties and having gone through the material evidence on record, the learned Court bellow has observed as under: “In the result, claim is awarded in following terms :- (i) Claimant petitioners are entitled to get the award of Rs.12,38,000/-( rupees twelve lacs thirty eight thousand) only along with 9% simple interest per annum from the date of registration of claim i.e, w.e.f. 12.01.2021 till the date of realization thereof. The Noticee, Oriental Insurance Company Ltd. shall, deposit the awarded amount along with interest thereon within one month to this Tribunal. Noticee, shall be at liberty to recover the amount from the OP in accordance with law. Supply a copy of this award free of cost to the parties by not later than 15 days from the date of the award.” [6] Mr. B. Debnath, learned counsel appearing for the appellant has submitted that the learned tribunal has failed to appreciate the subject matter on record and has failed to assess the actual income of the profession of a cloth shop owner and wrongly hold that the monthly income of the deceased Rs.2,000/- per month. Actually, the landlady as PW-2 deposed that the deceased paid Rs.2,000/- per month as rent for the shop but the learned tribunal wrongly held it as her income. [7] The learned tribunal committed serious error both on point of law and facts and did not consider the fact as well as submission made in the examination in chief and claim petition. In the year 2021 a cloth shop owner would not earn less than Rs.10,000/- per month from the cloth shop. The land lady of the shop owner of the deceased who examined as PW-2 during trial deposed that the deceased used to pay her Rs.2,000/- per month as rent for the cloth shop. From which it can be presumed that the deceased from her business of cloth shop easily earn more than Rs.10,000/- per month which she contributed to her family. Moreover, as an Anganwari Worker the deceased used to get Rs.4,202/- per month as salary. So total monthly income of the deceased was near about Rs.15,000/- per month. But the learned tribunal wrongly held that the deceased used to earn Rs.2,000/- per month from the cloth shop and h old that total monthly income of the deceased was Rs.6,202/- per month. [8] He has further contended that the learned tribunal ought not to have awarded a very meager sum and it should have been awarded as claimed by the claimant. The finding of the learned tribunal resulting in the impugned award of very meager amount of compensation is grossly erroneous, perverse and the same has to be set aside. The learned tribunal has erred in passing the judgment and making meager amount of award to the claimant. The Hon’ble Apex Court in a judgment reported in (2014) 2 SCC (Cri) 379 opined to determine the proof of income of self employed labour in unorganized sector. [9] There is no dispute between the parties as to the death of deceased. According to the claimant petitioners on the relevant date and time deceased along with two others was waiting for taking water near the water supply point on Khasiabari-Tilthai Road where she was dashed due to rash and negligent driving of the driver of the offending vehicle resulting which they met with an accident and on the same day deceased succumbed to her injuries. From the Charge sheet [Ext.2(i) to 2(iii)] it reveals that the accident occurred due to rash and negligent driving of the driver namely, Rupak Sarkar of the offending vehicle. Therefore, this Court finds it appropriate to hold that the death of deceased was caused due to rash and negligent driving of the driver of the offending vehicle. [10] It has been established beyond any shadow of doubt that the death of deceased was caused due to rash and negligent driving of the driver of offending vehicle. Therefore, the claimant petitioners being the daughter, and son of the deceased are entitled to have the compensation under the beneficial legislation, namely the M.V. Act. Now the question arises is what should be the quantum of compensation and who is liable to pay the same. In order to decide and calculate the amount of compensation we find it apposite to have a reference to a recent judgment of the Honble Supreme Court reported in AIR 2017 SC 5157 (National Insurance Company Limited Vs Pranay Sethi and others) wherein In Para-61 of that Judgment it was observed: “61. In view of the aforesaid analysis, we proceed to record our conclusions: